Burlen v. Shannon

• Decision Date: 04 September 1874
• Citation: 115 Mass. 438
• Parties: Caroline W. Burlen v. Oliver N. Shannon
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

115 Mass. 438

Caroline W. Burlen v. Oliver N. Shannon

Supreme Court of Massachusetts

September 4, 1874

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Suffolk. Contract for board furnished from February 22, 1860, to February 7, 1866, to Harriet M. Shannon, alleged to be the wife of the defendant.

The answer denied all the allegations in the declaration, and set up that the defendant, in 1856, legally obtained, in the proper court of the State of Indiana, a divorce from Harriet M. Shannon, to whom he was married in 1835. Trial in the Superior Court, before Dewey, J., who after a verdict for the defendant allowed a bill of exceptions in substance as follows:

There was no controversy in regard to the price charged for the board of Mrs. Shannon. The plaintiff introduced copies of the following records:

1st. A judgment recovered in this court in Suffolk, in 1854, by this plaintiff against this defendant for board of his wife from September 7, 1846, to May 31, 1850.

2d. The proceedings and judgment of this court in Middlesex at October term, 1852, upon a libel for divorce a vinculo filed by Oliver N. Shannon against Harriet N. Shannon, September 10, 1851, for desertion by the wife from September 7, 1846, to the time of filing the libel; in which the rescript filed March 11, 1853, was: "Libel dismissed, the libellant having failed to support it by his proofs; costs for the libellee, deducting therefrom the amount paid by her for depositions;" and the judgment was for costs, $ 121.10.

3d. The proceedings and judgment in this court in Middlesex, April term, 1855, upon a libel for divorce a mensa, filed by Oliver N. Shannon against Harriet M. Shannon, June 10, 1853, for desertion by the wife from October 24, 1850, to the time of filing the libel; in which the libel was "dismissed without prejudice," June 11, 1855.

The plaintiff then called witnesses to prove, and offered to prove, that Mrs. Shannon left her husband in 1846, on account of many acts of extreme cruelty, and so oft repeated, as to fully justify her leaving him.

The defendant then offered in evidence a copy of the record of the proceedings and judgment in the Superior Court in Suffolk, September term 1858, in an action brought by this plaintiff against this defendant, for board of his wife, from June 1, 1850, to July 18, 1853, and of the same case in this court in Suffolk, October term, 1860; by which it appeared that in that case a general verdict was returned for the defendant, and judgment entered thereon, and that at the trial certain questions were submitted to the jury, which they answered as follows:

1. "Was the verdict and judgment rendered thereon, in the case Burlen v. Shannon, in the Supreme Judicial Court, November term, 1854, recovered on the ground that the defendant's wife was justified in living separate from her husband by cruelty, or was it on the ground of absence by reason of his consent?" Ans. "Absent by consent."

2. "Did the defendant, on his wife's return from Philadelphia in October, 1850, make a suitable provision for her in his own home, and in good faith, upon sufficient assurances, request her to return and accept of it?" Ans. "He did."

3. "Did Mrs. Shannon, without a justifiable cause, refuse to accept the provisions so offered to her?" Ans. "She did."

4. "Did Mrs. Shannon, during the period for which the board is claimed in the declaration in this suit, live separate from her husband, without his consent, and without any justifiable cause?" Ans. "She did."

At the trial of that case Mrs. Shannon could not legally testify, and did not. At this trial she was a witness, and it was proposed to prove by her, as well as by others, the alleged acts of cruelty; and the introduction of said copies was objected to. The presiding judge ruled that the special findings and judgment were conclusive; and that no evidence of acts of cruelty by the defendant to his wife, prior to July, 1853, could be admitted.

The defendant put in evidence an authenticated copy of the record of the Circuit Court, in the county of Vigo and State of Indiana, showing the following proceedings: The defendant, on January 15, 1856, filed in the clerk's office of said court his petition for divorce from said Harriet M. Shannon, his wife. The petition was amended on the same day. As amended, the cause alleged for the divorce was desertion by the wife from December, 1849, to January 15, 1856. A summons was issued, directed to the Sheriff of Vigo County, requiring him to summon Mrs. Shannon to appear, to answer, on the first Monday in March, 1856. On the back of the same is the return of a deputy sheriff for Suffolk county, Massachusetts, dated "Suffolk, ss., February 6, 1856," that he left on that day, "a true copy" of the summons "at the last and usual place of abode of the within named Harriet M. Shannon, said Harriet M. Shannon being in the house, as I was informed, but admittance to her being denied me by her order;" and that on same day he "delivered to J. P. Healy, Esq., attorney for said Harriet M. Shannon, a like copy. "On March 20, 1856, "it appearing to the court, from the affidavit of a disinterested witness, that the defendant is not a resident of Indiana," notice of the pendency of this suit was ordered by publication, that the defendant might appear before said court, on the first Monday in September then next. At said September term, after proof of said notice by publication, the defendant was defaulted, and the cause was heard by the judge, and the record states that the court finds that the facts and allegations in the plaintiff's petition are true, and that a divorce ought to be granted; and the court further finds from the evidence that said defendant has wilfully, and without cause, and without the plaintiff's consent, utterly deserted and abandoned the petitioner for five years consecutively, prior to the filing of said petition by the plaintiff, and now continues said desertion and abandonment; and a divorce was decreed from the bonds of matrimony.

The plaintiff also offered evidence that Harriet M. Shannon, early in October, 1853, went to the defendant's residence in Newton, and had an interview with him. As to the conversation which occurred between them, the evidence was conflicting. The plaintiff contended that Mrs. Shannon offered, in good faith, to return and live with the defendant, and that he refused; and the defendant contended that the wife did not offer in good faith to return, and was not refused.

It was proved that about ten days afterwards, on October 17, 1853, a letter was written by Mrs. Shannon and sent to the defendant; that he received the same on that day, but never replied to it in any manner. A copy of the letter is in the margin. ^[*] The defendant introduced a witness, who testified, in substance, that the plaintiff told him that Mrs. Shannon went to the defendant's house in October, 1853, and sent the letter to evade the law; that she did not intend to live with him, and would not.

After the defendant's evidence was closed, the plaintiff, by way of rebutting the testimony of this last witness, called Mrs. Shannon and inquired of her whether she went to her husband in October, 1853, with the sincere desire and purpose to return if her husband would receive her, and whether she made the offer to return in good faith, and whether she sent said letter in good faith. All this was objected to and excluded.

It was testified by the defendant that he started in June or July, 1855, and went into several western states, but did not stop in any of them; that in the fall of 1855, or first part of the winter, he went to Terre Haute, where the petition for divorce was drawn. It did not appear more definitely at what time he went. There was evidence, on the part of the defendant, that he removed to Indiana, on account of the ill-health of his daughter. It was proved that the defendant and his wife had not lived together since July 18, 1853.

It was testified, and there was no conflicting evidence, that Harriet M. Shannon was never in the State of Indiana; that during the years 1855 and 1856, and for years previously, she was living with her sister, the plaintiff, in Boston, about seven miles from the defendant's residence in Newton, and that the defendant during said time knew well her said residence; that he never notified her of his intention to go to Indiana, never requested her to go, nor in any way informed her that any provision had been or would be made for her in Indiana, or that any means had been or would be furnished to defray the expenses of a journey by her to that state; that the defendant did not in fact provide any means to defray the expenses of said journey, nor make any provision for her support in Indiana, though he was abundantly able so to do; that Mrs. Shannon was without means to defray the expenses of such a journey; that the defendant had no reason to believe, and did not believe, she had such means, and that the first knowledge she had of his having gone to Indiana, was the copy of the summons left by the deputy sheriff as before stated; and it was not pretended she had any settlement in Indiana derived from her parents or ancestors.

It was proved, and there was no conflicting evidence, that Mrs. Shannon did not appear, nor employ or authorize any one to appear, in the suit for divorce in Indiana, nor in any way submit to the jurisdiction of the court in that case.

The plaintiff requested the presiding judge to instruct the jury among other things, as follows: "1. That, if the jury should be satisfied, from the evidence in the case, that Mrs. Shannon was never in the State of Indiana; that she had no knowledge or...